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Malloy v. Capitol Bakery Inc.

Decided: December 21, 1955.

FRANK MALLOY, PETITIONER-APPELLANT,
v.
CAPITOL BAKERY, INC., RESPONDENT-APPELLEE



Morris, J.c.c.

Morris

[38 NJSuper Page 517] This is an appeal from the dismissal of a petition for compensation entered in the Division of Workmen's

Compensation at the close of petitioner's case on the ground that the employment being "casual" the said Division had no jurisdiction in the matter.

The facts in the case are unusual and counsel for the respective parties in an exhaustive research of the cases have been unable to cite any precedent directly in point on the precise issue here involved.

The pertinent part of the statute applicable is R.S. 34:15-36 which provides:

"'Employer' is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; 'employee' is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring; provided, however, that forest fire wardens and forest fire fighters employed by the State of New Jersey shall, in no event, be deemed casual employees."

From the testimony it appears that the petitioner Frank Malloy was by trade a baker and for approximately a year prior to the date of the accident had been employed by the Snow Flake Bakery in Elizabeth. He did not have to work on Monday, July 5, 1954, and was asked by the business agent of his local to work on the said day for the respondent Capitol Bakery, Inc., to relieve another employee who was ill on that date. He did go to work for the respondent on July 5, and while working injured his back.

It was proven that at least in the baker's trade the old system of a baker being hired to work by and for a particular bakery, for which he would work only and for no one else, has been supplanted by the new system in which there is little or no real "hiring" familiar in law for centuries and in which the bakery takes such men as are sent to it by the business agent of the local union as circumstances require and with the end in view of filling the needs of the employer and at the same time giving to members of the union the most days of work. Time marches on with the undoubted

result that instead of employees losing time because of the lack of work in a particular bakery and unfilled orders in another bakery because of lack of help, both the employer and the employee, as well as the public, benefit by the new system whereby the business agent of the local finds work for the worker and labor for industry.

The testimony discloses that in addition to working for Snow Flake and Capitol, petitioner had also worked for three other bakeries.

The agent of the local testified "every baker working for us in our Local is subject to my call" and that "you cannot say that a man has a Sunday off or a Monday off, because many of my shops work seven days a week, and the practice is you will have a man coming in one shop one day a week or every other week. We fit the needs of the men to the employer. If an employer's work is such that he requires four men one day a week and two men all the rest of the week, we will give him two extra men for that one day of the week."

The testimony of the business agent was corroborated by the respondent's foreman, who was called as a witness on behalf of the petitioner. He testified that he, too, was a member of the union and that during the five years of his employment with the respondent he was ...


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